Behaviour in Canada can only be criminal if a federal law specifically prohibits it.

There is a long history of abortion in common law, known as "destroying infants in the mother's womb" and punishable by "transported beyond this season for the term of his or her natural life or for any term not less than 15 years" (William Russell, A Treastise On Crimes and Misdemeanors (Philadelphia: T& JW Johnson & Co.,1857), p. 671).

Historically, some phases of the common law punished the perpetrator of an abortion only if it occurred subsequent to the woman being quick with child. A woman was quick with child once she had felt the foetus move within her.

As early as 1869, Canada prohibited abortion - see image from the 1869 statute pictured.

Section 287 says that every one who, with intent to procure the miscarriage of a female person, uses drugs, instruments or manipulation of any kind, for the purpose of carrying out their intention, is guilty of an indictable offence and liable to imprisonment for life. The Code exempted doctors from criminal liability if a hospital abortion committee was prepared to sign a statement to the effect that the "continuation of the pregnancy of the female person would or would likely to endanger (the pregnant woman's) life or health."

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Dr. Henry Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of the Criminal Code.

The issue came to a judicial head in 1988, when the Supreme Court ruled that section 287 of the Code offended section 7 of the Charter, and that the former was therefore of no force or effect (1 SCR 30).

Wrote Chief Justice, Brian Dickson:

"Forcing a woman by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and this a violation of her security of the person."

There were to be other legal challenges.

Joseph Borowski asked the high court to rule that abortions violated the foetus' right to life and equality under section 7 of the Charter.

The Saskatchewan Court of Appeal ruled that a foetus was not a person capable of claiming rights under the Charter.

Borowski's case never made it to the Supreme Court as the decision in Mortgentaler made the issue in Borowski's appeal moot.

The issue of the rights of the foetus reached the Supreme Court when, in 1989, a Quebec man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her foetus (Tremblay v. Daigle, 2 SCR 530).

The Court sidestepped the question of foetal rights under the Charter by deciding that the foetus was not a "person" under Quebec civil law:

"A number of Anglo-Canadian courts have considered the status of a foetus in cases which are similar to the present appeal. These courts have consistently reached the conclusion that to enjoy rights, a foetus must be born alive.... In light of this treatment of foetal rights in civil law and, in addition, the consistency to be found in the common law jurisdictions, it would be wrong to interpret the vague provisions of the Quebec Charter as conferring legal personhood upon the foetus."

In R. v. Sullivan, Canada's Supreme Court, in 1991, 1 SCR, 489, a childbirth assisted by midwives went wrong; when the bay was delivered, the child showed no signs of life and resuscitation attempts were unsuccessful. The midwives were charged with criminal negligence causing death and bodily harm. The midwives were acquitted because the foetus was not a "person".

A legislative vacuum of sorts was created.

Nova Scotia tried to write a law which prevented abortions except at certified hospitals. The provincial act was ruled invalid as an encroachment on criminal law powers that is reserved to the federal government.

When she was prime minister, Kim Campbell tabled a bill to bring back a form of criminal law control over abortions. The bill survived a close vote in the House of Commons on May 29, 1990, (140 to 131) but was defeated in the Senate by a rare tie vote (43 to 43) on January 31, 1991.

Therefore, since the Mortgentaler decision, there is no Canadian criminal law which addresses abortion.

In 1996, a pregnant Ottawa woman, Brenda Drummond, tried to kill herself or her foetus by discharging a pellet gun into her vagina.

The pellet lodged into the foetus' head. A few days later, she gave birth in the bathroom of her home. The baby was born alive. Emergency surgery saved it's life when an x-ray revealed the pellet in the child's head.

Prosecutors were at a loss as to what crime, if any, she had committed. Finally, it occurred to them that for ignoring the risk to the baby in not disclosing the firearm discharge, she had endangered the child.

She was charged under s. 215 of the Criminal Code, which requires a parent to provide necessaries of life for their children, was convicted and was given a suspended sentence.

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Duhaime Lawisms

The whole value of the legal system - the integrity of the rule of law - is at once destroyed if it becomes possible for officials, by arbitrary decisions made not in public court rooms but in the private offices of officialdom, without hearing the parties, without taking evidence, free from all obedience to settled legal principles, and subject to no appeal, effectively to overrule the Courts and deprive a Canadian citizen of a right he has established by immemorial method of a trial at law.
Bachand v Dupuis, [1946] D.L.R. 641

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.